*1 940
case, enforce Section 1983 conditions found to constitute cruel and Act,” Rights appellants Wright in this punishment Civil unusual v. Me- they had case not shown that Mann10 Fitzharris.11 and Jordan v. punishment “subjected to the Solitary as in and of itself confinement Eighth Appellees’ Eighth Amendment forbids.” proh does not violate Amendment summary judgment motion was thus ibitions,12 temporary incon holding granted. also that a class In incident and discomforts there veniences proper not the regarded action vehicle for to cannot a basis for as challenging disciplinary where the judicial action light disposi relief. of this surrounding imposi- argu circumstances case, appellants’ tion of the other according punishment intervention, tion of varied to ments, right such as case, the District Court individual propriety of the suit class action as a the motions inter- summary denied as futile judgment, their own fall of Thereupon Gilyard Ford, and weight. vention. Riley appeal.8 took this order States Dis- United trict Court for District argue Appellants that the Dis Jersey 30, entering April judg- 1968, granting appellees’ trict Court erred appellees ment in favor will summary judgment, motion for hold affirmed. ing prop instant that the suit was not denying
er class action and in the motions Disregarding any im intervention. plications of mootness of issues complaint raised Ford’s reason Connecticut,
of his transfer and ac
cepting true all the factual alle gations complaint, excluding those merely conclusory, which are suffice it America, UNITED STATES of say that no action cause of is stated Appellee, Rights Act or the Civil v. Eighth Fourteenth Amendments. WILLIAMS,Appellant. William Dove Gurczynski Yeager: As was stated v. No. 12216. “Discipline reasonably maintained in Jersey] prisons those is not Appeals [New United States Court of supervisory under the direction of the Fourth Circuit * ** federal courts. There is Argued 11, Oct. 1968. nothing in the circumstances related 5, Decided March 1969. to indicate reasonable basis for authority, interference with the state though appellant’s
even is under claim guise of violation of his consti- 9 rights.”
tutional
None of the here circumstances revealed remotely approximate
even
the barbaric
appeal.
8. Urbano
(4
1963),
denied,
(Court-appointed Va., Martin, Norfolk, Black, Meredith & appellant. brief], Atty. Jr., Mason, U. S. T. William Asst. Atty., (C. Jr., Spratley, U. S. V. brief), appellee. SOBELOFF, WINTER Before Judges.
CRAVEN, Circuit Judge: CRAVEN, counts, delayed sentencing permit Circuit prepare officer and have imposition appeal from the In this presentence report available a to assist imprisonment ten-year discharging 4208(a) (2), U.S.C. § *3 sentencing responsibility. government if the concedes that day sentencing, the defendant Williams On the believed set eligible testimony of- a convened narcotic addict and an and heard as to the 4251(f), but fender under 18 U.S.C. substantive offense. Counsel defend- thought option ant he did have the to then not offered evidence the in written report Heyder, allow of sentence of Dr. Williams benefit Dietrich W. specializing psychiatry, medical under the doctor Narcotic Addict Rehabilitation in Act, seq., it who 18 U.S.C. 4251 et then had examined pursuant would follow to an that the district order the court.2 After concluding diagnostic impression sentenced under a misconstruction of his that his authority. addiction, “drug severe,” was one of further United States secondary sociopathic disorder, in to concedes that such event the error Dr. Heyder by vacating following should be corrected the de- made the recommenda- fendant’s sentence. tion: “ * * * patient That be Williams does not attack his admitted Hospital guilty Public plea Health and does not ask a new in Lexington,3 Kentucky, complain trial. He order not does prevent receive treatment severity further of his does ask sentence and not relapses. might It only noted that we at this “review” He it.1 asks point hospital that the fairly he be mentioned does resentenced and considered only serve to treat for treatment acute cases and under the Addict Narcotic symptomytology withdrawal is Rehabilitation Act. We think premises specializing government’s therapeutic of the concession efforts to change patient established, conclude and enable him drugs function Williams is entitled to sought. the limited relief after release. Untreated, prognosis relapse is very poor, prognosis whereas pleaded guilty eight- Williams change good proper care will be count charging indictment him with (Footnote instituted.” ours.)
forging uttering government and four day checks. he, On the set for with trial This only testimony medical permission of the withdrew his the record. diagnosis The doctor’s con- previously plea guilty entered by portions firmed presentence count 2 report and entered a which indicated history only. Subsequently, that count the court beginning heroin use in 1958 and con- tinuing allowed daily the motion of the United on a States basis until his current arrest, the other with perhaps period dismiss seven of remis- power you 1. It know, settled that lack this ex “As we the Narcotic cept exceptional in the most circum signed Addict Rehabilitation Act was Pruitt, stances. United into States 341 F. law in November 1966. This Act (4th 1965). places 2d responsibilities Cir. upon additional Hospitals. the Public Service Health By stipulation, the doctor was relieved result, As a Lexing- the facilities necessity testify- appearing longer ton and Fort Worth are no avail- ing, and his written was received able to us for the treatment of sentenced in lieu thereof. reg- addicts. Since Mr. Williams is a objection presented 3. Without we are ularly prisoner, sentenced he is not Hagan, letter from O. R. Assistant Direc- for commitment to either of the tor, Prisons, 29, Bureau dated March hospitals.” two advising, to counsel for Williams part, as follows: February Septem- necessity saying anything Court sion between they although determine, probation officer about and if after ber investigation denial, suggested, despite an examination Williams’ matter, proper probably extent it’s that he narcotics to some used during special period. In his evalua- confined some institution even summary, they con- officer so than tive should do rather virtually suggest they no “has Court do so.5 be- cluded satisfy goal lieve other than that’s a matter that be de- ambition should (Foot- pleasures and to maintain termined discretion.” immediate their ours.) drug that considera- note habit. It is believed in a environ- controlled ble reorientation February Effective the Con- *4 necessary rise for to ment is Williams legislation, gress enacted known as the society.” parasitic in above existence Narcotic Addict Act Rehabilitation 1966, permitting special for commitment tending offered to evidence was No treatment of certain narcotic addicts not to that was addicted show Williams “eligible.” 18 who found to be U.S.C. narcotics, At- nor States did United seq. provided 4251 It is that such et torney of the. evidence so contend. All a commitment for shall be an indeter- including presen- before period of minate time to exceed ten not was, report, he tence tended show that years. special It is this commitment and Immediately fact, in before an addict. thereunder passing sentence, its treatment available that indicated the court problem sought of narcotics awareness of the is Williams. for in set out in Williams the words government contends that Wil- Immediately sentencing, margin.4 after correctly properly liams was and sen- counsel for moved Williams not tenced and is entitled to vacation to the include direction in sentence a resentencing and for three Attorney General to examine reasons. eligible for he if were and determine First, says government, record Health Service commitment to a Public sentencing procedure, espe- and judge for district Center addiction. The judge cially the remarks of the replied as follows: immediately pronouncing before sen- (set “Well, supra), that will tence in note show feel certain out judge not without that the district believe called to their attention be early should, passing part of until some 1965 he con- before 4. “The court living tence, with fact that tends he was his wife and call attention any difficulty. along getting probation report the defend- It shows that appear drug from if were a was that he first this case commenced ant in was, addict, possession narcotics he he in 1960 that as said found adjust early marijuana cigarettes himself as 195S and he have been able to as must period pretty during of 1963 and in the well was convicted in he that something jostling must is and it of New York State adjust if was with him he can that he too habitual the statement he made time it; if is habitual then but drug sev- with convicted himself He addict. give again confinement need some he does then —in since eral times jostling. opportunity again treat- to have some jostling; him an in 1962 habit, charged he with cured ment and arrested and he was In between has formed the habit.” narcotics. convictions, had several he has time position 5. But Bureau of Prisons’ is misdemeanors, misdemeanor them most Williams, he not sen- charged convictions, he but ’66 the Narcotic Addict Reha- tenced under merchandise; concealment with the “regular- Act, bilitation was instead larceny, petty again in ’66 with ly sentenced,” is for commit- weapon carrying a concealed with ’67 hospital. Note ment a Public Health tampering an automobile. with with supra. point out does in this case evidence “The period during from 1963 of time that the defendant anwas addict. With- upon at all the discretion conferred him. duty upon significant out belief there is no It is that nowhere in the rec- place the district offender ord contained mention what- General soever of the Narcotic Addict Rehabilita- an examination to whether determine tion Act of 1966 or reference to the likely pertinent an addict and to be reha- statutes citation or other- through bilitated quite commonplace treatment.6 wise. It is in the dis- request trict courts defense counsel court said What special of the trial instruc- light should be read of all of authority tions to the custodial be con- evidence, support which evidence tends to tained in the re- commitment. Such only one conclusion: that Williams was quests range complete physical from ex- drug addiction, presently under severe special dietary aminations needs. We in remission because of confinement here, request pinpointed think the jail. Although entirely clear, it is not specific statute, one, which was a new interpre we think the most reasonable unreasonably interpreted by language tation the court’s set out prayers of the usual one margin (note 4, supra) he be special commonly instructions heard lieved he had before him a narcotic ad *5 expect circumstances.7 such If we ignoring dict. Without record he the judges, even the most able of scarcely could have believed otherwise. them, every talking play-back to be a credibility of the doctor and his conceivably pertinent myr- statute the to competence questioned. not were constantly changing iad fact situations ' Secondly, alternatively, and kaleidoscopic in court, confusion in a criminal government the insists that even if the expect we much. too What is not judge trial believed the defendant to convincing in the is record even more addict, a narcotic statute confers than what is in it. If the Narcotic Ad- upon judge discretion as to whether spe- dict Act of Rehabilitation 1966 had provisions to invoke the of 18 §§ U.S.C. cifically brought at- court’s judge 4252 and and the here trial tention, doubt, opinion, in our reasonably exercised that discretion so colloquy record would contain about that his failure to commit for examina statutory history purpose its and and its tion was not an abuse discretion and application intended to as offenders such subject appeal. is not to correction on judge Williams. think We say It is true 18 U.S.C. 4252 does § here did not exercise his discretion un- “may” place eligible that the court simple der the Act for the reason that it custody offender for an examination sufficiently called to atten- to determine whether he an addict. is tion to make him aware of his discre- agree government We with the that the responsibility tion and his for the ex- legislative “may” choice in of the word ercise of it. clearly stead of the word “shall” indi upon an intention to cates confer dis right That a defendant has a judges judge’s trict discretion wheth discretion, reasonable exercise selecting er commit for an do examination. We treatment, sentence or is possibility not consider an abuse in a established firm line of cases inter preting statute, of discretion because we conclude that a California similar to judge here, dealing not the one here did exercise with narcotic ad- eligible Frequently, 6. “If court believes that an of- defendants ask for confine- may place addict, particular place spe- an him in fender ment in a for —not cial General treatment —but because it is closer may visit, to determine whether he examination an friends relatives who or likely enjoys jailhouse be rehabilitat- even an addict and is because it a better reputation through ed treatment.” 18 U.S.C. than another institution.
945
pertinent part
statute
“The record
the trial
shows
In
diets.
discre-
refused to exercise his
provides:
tion in
the erroneous belief that
a defendant
“Upon
conviction
none.
had
Under such circumstances
any superior
crime
reversed,
judgment
must be
defend-
ascertains
trial,
the cause
a new
remanded
not
re-
reason of
or
addicted
ant
but in order that the trial court
in imminent
narcotics
peated use of
opportunity
to exercise its
have
nar-
becoming
addicted
danger of
provisions
discretion
sec-
adjourn
proceedings
cotics he shall
People
tion 6451 of the Penal Code.”
imposition
suspend the
548, Cal.Rptr.
Wallace,
v.
30
59 Cal.2d
file
the sheriff
and direct
tence
449, 452,
P.2d
person is
if such
petition to ascertain
Ibarra,
People
In
v.
60 Cal.2d
in imminent
narcotics
addicted
(1963),
Cal.Rptr. 863,
Sentence left arm and needle into his prosecution, dermic judge, or the “If Up- standing him. next open Fortson was a statement defense counsel makes arrest, Williams was found on their contrary he has to what court envelopes glassine con- prom- of 58 especially believe, toas led to pants taining heroin, front in his left prosecutor or his defense coun- ises pocket. charges * * * Fortson sel, no defendant] would [the open Williams were dismissed 7-5-67. challenge statement more bail on clergyman’s cash challenge $100.00 released he would than August 22, Trebach, un- He was indicted pulpit.” from the sermon 9-18-67 No. 3165-67 on der Docket Rationing 159-60 of Justice appear in court failure and due to his will be noted that 14. It was issued 10-13-67. Bench Warrant possibility. specific See about this asked gave arrest, At the time of supra. note Avenue, Brook- 699 Alabama address as lyn.” report presentence described 1. The ex- review of charges After further defendant’s follows: of these circumstances record, “He stated: July 5, 1967, tensive at a.m. at 7.Y5 “On City July Terminal, Authority New York returned Bus Port toilet, with the author- C., involved Ave., became men’s N. Y. 8th pending ities, is still arresting Martin observed officer (Emphasis supplied.) time.” toilet in one Fortson and Williams *10 liypo- placed a booth. Williams July 3, by “eligible defendant’s of of offender” excludes one guilty charging “against pending prior to the count felonious whom there is felony drug, of narcotic with de- of a which has been penitentiary finally fendant sentenced to the of determined.”3 At the time of City sentencing judge the year, of New for a York term one de- of before suspended of precisely execution sentence fendant was exclu- within the argument, probation. oral sion. It he an follows that “eligible counsel for defendant admitted an offender” Act to whom the undisposed felony charge pending Meyers any application. of could have against appeared (9 States, defendant when he for United 388 F.2d Cir. sentencing judge. 1968). therefore, axiomatic, before the district It is the district had no discretion to Equally beyond dispute the rule is sentence him under the Act could judge properly might the district failing not be of to exercise dis- rely upon consider and truthful state- possess.4 cretion which he presentence report, ments in the unham- plain logic situation is not to be pered by governing the rules admissi- by labeling uncontroverted avoided bility York, at trial. Williams v. New “fortuitous,” facts or to be diluted 337 U.S. 69 S.Ct. 93 L.Ed. vague notions of unfairness. majority error in finds further Whether in known to the district fact judge, the failure to con of the district at the of time postponing ineligible sider sentence in order to tence to be sentenced under permit defendant, through Throughout counsel, his the Act. its the Act various attempt disposition provisions apply some favorable only to one who is an “eligible pending charges the qualify York phrase so as to offender” and that is “eligible him an 4251(f).2 reading offender.”5 defined in As a § agree “nothing I demonstrate, there is the text will the definition “(f) ‘Eligible any (5) means indi- an offender has who been com- offender’ vidual who convicted mitted an under title Ad- Narcotic offense against States, United but does not dict Rehabilitation Act chapter, include— the District of Co- any pro- Code, lumbia or under State (1) an offender who is convicted of a ceeding narcotic on addiction crime violence. three or more occasions.” (2) an offender who is convicted of (emphasis supplied). unlawfully importing selling or or con- felony 4251(d) 18 U.S.C.A. defines spiring import sell a narcotic any include offense in violation of a law drug, unless the court determines felony of the United States classified as a primary purpose such sale was for the any under the Criminal Code and offense enabling the offender to obtain a in violation of a law of state “which drug requires narcotic the time of the offense was classified personal use because of addic- felony by place as a the law of the where drug. tion to such that offense was committed.” (3) an whom there offender pending prior charge felony 4. The California ma- decisions cited finally jority inapposite. been has not determined or Even from their description majority opinion, who is or whose charge, following apparent that, here, conviction on such a unlike defendant parole including persons time on or manda- convicted could have been sen- release, tory fully served: tenced under the California rehabilitation n proba- Provided, That offender statute. mandatory tion, parole, or shall release finding actually 5. The two-fold. authority included authorized to majority also finds error in the failure require custody his return consents to exercise his discre- to his commitment. tion as to “whether him commit (4) an offender who has been con- General ex- felony prior victed of a on two more amination under 18 U.S.C. 4252.” How occasions. the latter could be error I fail see. *11 dispo- may prevent a to warrant fender be shown statutory that would scheme delinquent? juvenile The continuing sition as a the sen judge from district holding in which the Court’s in answers tencing a reasonable procedure for are, attempt suggests indeed, new and this case permit a defendant terval charge pending novel doctrine. burden it felony in To me the disposition aof judges insupporta- places jurisdiction, would district other some ble. consid disqualify him from otherwise logic Act, but under eration” singularly inappropriate This is a case leap to the conclusion for the in which to this new doctrine. announce failure, sponte, to sua error in the was states, majority “[pjrobably New sentencing post be should consider if one-year suspended sentence York judge was poned me. district eludes ten-year a received because Williams had sentencing. postpone requested to in sentence the federal indeterminate reasonably re request, a he Absent I correction court.” would venture control to set docket sufficient tained undoubtedly just New York disposition a ease in which sen final for previous con- had one that. Defendant postponed tencing already four in viction New York where, This not a situation weeks. cigarettes marijuana and three other made, request district a were even if offenses, at one of convictions for least grant required to con be would related, de- in sense that was tinuance. sought support his ad- fendant funds that, essence, holds now the Court convic- the four diction. For each of request absence of even in the varying tions, has served continuance, every district days thirty months. terms of to six post- duty every in case to consider suspended From the of a sentence fact sentencing ponement counsel to afford probation, the inference me without opportunity of facts to create an state inescapable under- New York may influence the standably interest her surrendered give sentencing more lenient law disposition her anof offense disposition. a dis- humane Must more States, in the belief to the United therefore, judge, mo- on his own trict disposition made. had been what federal sentencing tion, postponing consider may disposition have A federal different permit require transfers or to adopt more motivated New York may Fed.R.Crim.P., he Rule stringent attitude, with the result disposition more overall make a lenient “eli- an have been defendant would not they cases than transferred gible exclusions offender” under other jurisdic- disposed separate were Resentencing, 4251(f). contained in § judge, on his own tions? Must a district fact, on the basis after sentencing motion, postponing consider leniency war- apparent is neither York’s youthful insist offenders and justified.6 nor ranted a birth certificate counsel obtain I would affirm. that, possibly, hope of- some each fully legal permits By effect a commit- served. its terms require to de- consent New York’s Gen- ment disposition as a study the Act “an fendant’s eral disposition. De- precedent to be an addict. believed to such offender” condition “eligible not, repeat, I circumstances, fendant How, de- what and under judge could How the offender.” required to serve could fendant says may do or law do what suspended I visualize. cannot sentence required why to consider he should be defendant’s I would conclude impossible, doing surmise. cannot purposes, practical tence, legally and for my fully the basis This is majority apparently served. to avoid seeks 6. The apprehension be re- advantage that defendant unjustified to defendant derogation interests suspension by likening sentenced service of of New York. a sentence